Central Administrative Tribunal - Delhi
T.M.Sampath vs Union Of India Through on 15 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.1070/2015 M.A. Nos.1120/2015 and 1121/2015 Reserved On:07.07.2015 Pronounced on:15.07.2015 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) T.M.Sampath S/o Late Shri Munisamy Mudaliar Aged about 59 years, Administrative Officer National Water Development Agency Flat No.117, Palika Bhawan, R.K.Puram, Sector-13, New Delhi-110066. .Applicant. (Applicant in person) Versus Union of India through 1. Shri Anuj Kumar Bishnoi Secretary to Government of India, Ministry of Water Resources, Shram Shakti Bhawan, Rafi Marg, New Delhi. 2. Shri S.M. Husain Director General National Water Development Agency 18-20, Community Centre, Saket, New Delhi-110017. 3. The Secretary, Central Vigilance Commission, Satarkta Bhawan, Block-A, GPO Complex, INA, New Delhi-110023. 4. Shri R.K. Jain Chief Engineer and CVO National Water Development Agency 18-20, Community Centre, Saket, New Delhi-110017. ..Respondents. (By Advocate: Shri Gyanendra Singh and Shri R.N.Singh) ORDER
G. George Paracken, Member(J) The Applicant who is the Administrative Officer working under Respondent No.2 has filed this Original Application against the Office Memorandum No.2/72/2011-Admn./Vol.IX/20021-23 dated 30.12.2014 treating 97 days of duty period as dies non and directing recovery of Rs.1,81,461/- in monthly instalments from his salary from the month of December, 2014 to May, 2015. The details of the absence given to him are as under:-
Sl. No. Date Sl.No. Date Sl.No. Date
1. 19.01.2012 34 17.10.2012 67 08.07.2013
2. 23.01.2012 35 08.11.2012 68 30.07.2013
3. 24.01.2012 36 23.11.2012 69 06.08.2013
4. 25.01.2012 37 29.11.2012 70 22.08.2013
5. 03.02.2012 38 05.12.2012 71 23.08.2013
6. 10.02.2012 39 07.12.2012 72 26.09.2013
7. 16.02.2012 40 20.12.2012 73 27.09.2013
8. 24.02.2012 41 18.01.2013 74 21.10.2013
9. 27.02.2012 42 01.02.2013 75 28.10.2013
10. 07.03.2012 43 06.02.2013 76 30.10.2013
11. 17.03.2012 44 11.02.2013 77 11.10.2013
12. 21.03.2012 45 15.02.2013 78 12.11.2013
13. 22.03.2012 46 04.03.2013 79 29.11.2013
14. 27.03.2012 47 08.03.2013 80 13.12.2013
15. 28.03.2012 48 11.03.2013 81 10.03.2014
16. 04.04.2012 49 21.03.2013 82 24.03.2014
17. 09.04.2012 50 01.04.2013 83 04.04.2014
18. 16.04.2012 51 04.04.2013 84 15.07.2014
19. 26.04.2012 52 05.04.2013 85 16.07.2014
20. 27.04.2012 53 17.04.2013 86 17.07.2014
21. 30.04.2012 54 18.04.2013 87 11.09.2014
22. 01.05.2012 55 30.04.2013 88 18.09.2014
23. 07.05.2012 56 01.05.2013 89 19.09.2014
24. 14.05.2012 57 06.05.2013 90 25.09.2014
25. 15.05.2012 58 09.05.2013 91 08.10.2014
26. 17.05.2012 59 13.05.2013 92 09.10.2014
27. 25.05.2012 60 14.05.2013 93 15.10.2014
28. 10.07.2012 61 16.05.2013 94 03.11.2014
29. 25.07.2012 62 17.05.2013 95 11.11.2014
30. 14.08.2012 63 20.05.2013 96 13.11.2014
31. 24.08.2012 64 22.05.2013 97 18.11.2014
32. 27.08.2012 65 23.05.2013
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33. 27.09.2012 66 30.05.2013
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2. Brief facts of the case: Vide Office Memorandum dated 20.01.2014, the Applicant was asked to explain the reasons for appearing in various Courts without any application for leave and without seeking permission. The details of dates in the years 2013 and 2014 on which he so appeared in the courts were also furnished to him. It was also stated in the said OM that he has made his habit to remain absent from office unauthorizedly. He replied to the said Memorandum on 23.01.2014 stating that he had attended the Courts with the blanket permission by his superior officer Shri R.K. Jain, the Chief Engineer (HQ). Moreover, Shri Jain himself advised him that attending court in respect of service matter with NEDA is part of official duty. Further according to him, later Shri Jain wanted to harass him for calling him a corrupt officer in the appointment of nine LDCs during the year 2011 and for making RTI questions against his functioning. He has also submitted that time generally required in service matter is less than one hour and the same should be considered as official duty. Thereafter, vide Memorandum dated 05.02.2014, he was informed that he has never been advised that he could attend court for his personal cases without submission of leave applications and leveling false allegations against his seniors has become his habit. He was also asked to explain, within 3 days, as to why the period of his absence from office may not be declared as unauthorized absence and the principle of no work no pay be not implemented in his case. He did not submit any reply. Again by a subsequent Office Memorandum dated 27.02.2014 informing him that remaining absent from office for the purpose of going to court amounts to unauthorized absence but again remained absent from office on 27.07.2013, 30.09.2013 and 11.02.2014 in similar fashion. He was given the last opportunity to explain as to why the days of his absence from office cannot be declared as unauthorized absence besides taking disciplinary action against him. He, vide reply dated 28.02.2014, once again submitted that attending court proceedings cannot be treated as unauthorized absence when the same has been done with permission. Thereafter, the Respondents served him with another Memorandum dated 11.04.2014 proposing to treat the days of his unauthorized absence of 90 days as dies non in terms of FR-18 and denied him pay and allowances of the principle of no work no pay in terms of FR-17(1). Further, in terms of FR-17-A, it was decided to treat the 90 days on which he remained absent unauthorizedly as interruption or break in service. He was also given an opportunity to submit his representation, if any, against the aforesaid proposed action within a period of five working days and the opportunity of being heard in person, if he so desired. Applicant submitted a reply on 15.04.2014 stating that the aforesaid Memoranda were issued to him as S/Shri S.M. Husain, Director General, NWDA, R.K. Jain, CE (HQ) & CVO; J.S.S. Satry, Consultant (Admn.) and Y.D. Vats, Deputy Director (Admn.) were prejudiced against him for having been a whistleblower and for exposing the illegality committed by some of the officers of NWDA. The details of the irregularities committed by each of the aforesaid officers were also described in great detail. As regards the proposal to treat 90 days as dies non, he has stated that it should have been initiated within a reasonable time immediately after 19.01.2012 and initiating it after a period of two years is an after-thought action to take revenge against him for the complaints made by him against S/Shri R.K. Jain, CE (HQ) & CVO; J.S.S. Satry, Consultant (Admn.) and Y.D. Vats, Deputy Director (Admn.). He has also stated that the said proposal was a false proposal without considering the vital documents of Biometric Attendance System and monthly absentee statement of immediate superior and without considering the functioning of Central Administrative Tribunal, Principal Bench, New Delhi and High Court of Delhi. As regards the submission of the Respondents that he could be heard in person by Shri S.M. Husain, DG, NWDA, if so desire, he has stated that since Shri Husain was prejudiced against him, any amount of argument before him shall not fetch him justice. Thereafter, the Respondents have issued the impugned order dated 30.12.2014. According to them the Applicant was in the habit of bringing extraneous issues to create confusion and camouflage his misdeeds; the allegations of bias and conspiracy made by him were factually incorrect and they were made more on account of paranoia on his part; he left the office and attended the Central Administrative Tribunal (CAT for short)/court to pursue his personal cases against the NWDA; since he remained absent for the part of day without any authorization for such absence by way of grant of leave, the days on which such absence occurred has to be treated as dies non; in cases of such absence from work, the leave sanctioning authority may order that the days on which work was not performed, be treated as dies non; he admitted that in his cases which were listed between the time 10.30 A.M. to 1.00 P.M. he was present in the CAT/Court but he attended the court without taking half days casual leave; to attend the CAT, he was required at least 30 minutes each way to reach from Palika Bhawan, R.K. Puram to CAT/Delhi High Court which is at a distance of nearly 10 Km and, therefore, his contention that he was away from office only for half an hour was absolutely untrue and physically impossible. They have also stated the Applicant declined to meet the Director General, NWDA for personal hearing and the points raised by him were found irrelevant, factually incorrect and without merit. Therefore, the Competent Authority has decided to enforce the principle of no work no pay in terms of FR-17(1) for his absence of 97 days and to treat his absence as dies non in terms of FR 18. It was also stated in the aforesaid order that his unauthorized absence will cause interruption of his service in terms of FR 17A. The Respondents have also computed the pay and allowances for 97 days of his absence at Rs.1,81,461/- to be recovered from his salary from the month of December, 2014. The relevant part of the said order reads as under:-
4. The fact is that Shri Sampath left the office and attended the CAT/Court to pursue his personal cases against NWDA. Since he remained absent for the part of day without any authorization for such absence by way of grant of leave, the days on which such absence occurred have to be treated as dies non. In cases of such absence from work, the leave sanctioning authority may order that the days on which work was not performed, be treated as dies non.
5. Shri Sampath admitted that his cases which were listed between the time 10.30 A.M. to 1.00 P.M. he was present in the CAT/Court during that time. However, he attended CAT/Courts without taking at least half day CL, if not leave for full day. Apart from the above period of time in CAT, Shri Sampath would have required at least 30 minutes each way to reach from Palika Bhawan, R.K. Puram to CAT/Delhi High Court, which is at a distance of nearly 10 Kilometers. Therefore, Shri Sampaths contention that he was away from office for half an hour is absolutely untrue and physically impossible.
6. Further, Shri Sampath declined to meet the Director General, NWDA for personal hearing. The points raised by him were found irrelevant, factually incorrect and without merit as observed in the previous paras. Therefore, the Competent Authority has decided to enforce the principle of no work no pay in terms of FR-17(1) for his absence of 97 days (details given in attached statement marked as Annexure) and to treat his absence as dies non in terms of FR 18. This unauthorized absence will cause interruption in his service in terms of FR 17A.
7. Accordingly, the pay and allowances for those 97 days already paid to Shri Sampath through salary for the above period is treated as excess payment. Therefore, the excess payment of Rs.1,81,461/- will be recovered from the salary of Shri Sampath, Administrative Officer as under:-
1. December, 2014 Rs.30,000/-
2. January, 2015 Rs.30,000/-
3. February, 2015 Rs.30,000/-
4. March, 2015 Rs.30,000/-
5. April, 2015 Rs.30,000/-
2. May, 2015 Rs.31,461/.
3. Applicant has in this OA also stated that the aforesaid order was issued to him as retaliation for his role as a whistle-blower in the following cases:-
(i) Recruitment Scam for appointments to the post of Lower Division Clerks (LDC) during the year 2011.
(ii) Illegal appointment of Shri M.P. Gupta to the post of Director (Finance) and illegal fixation of pay.
(iii) Illegal grant of ACP/MACP to Shri M.P. Gupta, Director (Finance), seven employees of Cement Corporation of India who have been illegally appointed to the post of LDC in NWDA and three employees of NPCC.
(iv) Appointment of Shri R.K. Jain, Chief Engineer as Part-time CVO by CVC contrary to CVCs own procedure laid down.
Further, according him, he has stated that the Honble High Court of Delhi, in its order dated 12.05.2010 passed in Writ Petition ( C) No.3207/2010, has already held that the Respondent No.2 was prejudicial against him due to his personal grudge. He has also stated that the Central Vigilance Commission (CVC for short), instead of inquiring the issues raised in his complaint dated 27.01.2012, submitted Public Interest Disclosure and Protection of Informer, based on the false information given by the Respondents and closed his complaint without making any effort to find the truth. The aforesaid act of the Commission closing his complaint was contrary to the law laid down by the Apex Court as no complaint can be closed without making any enquiry. Further, he has stated that the Respondents No.2 & 4 were bent upon harassing him as they were Chairman and Member of the Selection Committee for selection to the post of Deputy Director (Administration) for which he was to be considered. He has also denied the allegation of the Respondent that he was on unauthorized absence and his attendance for attending the office were/are registered in the Biometric Attendance System. In this regard, the Applicant has annexed copies of the Attendance Register for the 97 days which have now been treated as dies non by the Respondents. Along with the said Attendance Sheet, he has also submitted the remarks of his superior officer stating that he was present in the office and his attendance was being marked in the Attendance Register. Further, he has also produced the relevant copies of the APARs for the period from 01.04.2012 to 31.03.2013, and 01.04.2013 to 20.01.2014. In none of those APARs, he was shown absent unauthorizedly. His immediate superior had submitted monthly attendance statement and he has never been marked absent. He was attending his own cases in the CAT with the oral permission of his immediate superior. Again, he has stated that it was without any application of mind and without hearing him in person the Respondents have issued impugned order treating 97 days of different spells starting from 19.01.2012 to 18.11.2014 and applied FR-17A for making break in his service. Therefore, the allegations made by the Respondents are not correct.
4. The Applicant has also relied upon the judgment of the Apex Court in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) etc. 2014 (8) SCC 883 wherein it has been held that no recovery can be held from the employees who are due to retire within one year. The operative part of the said order reads as under:-
12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.
5. The Respondents have filed their reply stating that the Applicant had filed more than 60 Court cases before this Tribunal and the Honble High Court of Delhi. Besides them, he was also facing 4 criminal cases. In two of them, he was admitted on bail on furnishing his personal bond of Rs.15,000/-. In most of the cases, he was appearing in person without taking any leave. He was present in the Court for at least 97 days during 2012 and 2013. They have also referred to the order of the High Court dated 08.03.2013, in W.P. ( C) No.5124/2012, wherein, inter alia, it has been observed as under:-
1. The petitioner appears to be spending his time in the corridors of the Central Administrative Tribunal as also the Delhi High Courts evidenced by the fact he has embroiled his department, National Water Development Agency in as many as 16 Writ Petitions and 9 litigations before the Central The writ petitions filed by him are: W.P.(C) No.7662/2002, W.P.(C) No.4385/2003, W.P.(C) No.6972/2003, W.P.(C) No.488/2004, W.P.(C) No.2220/2005, W.P.(C) No.3629/2005, W.P.(C) No.14074/2006, W.P.(C) No.2644/2007, W.P.(C) No.5981/2007, W.P.(C) No.7509/2008, W.P.(C) No.7745/2008, W.P.(C) No.186/2009, W.P.(C) No.8052/2009, W.P.(C) No.8645/2009, W.P.(C) No.9083/2009 and W.P.(C) No.9099/2009. The Original Applications filed by him before the Tribunal are: O.A.No.639/2008, O.A.No.2037/2008, O.A.No.2141/2008, O.A.No.2504/2008, O.A.No.58/2009, O.A.No.85/2009, O.A.No.251/2009, O.A.No.405/2009 and O.A.No.599/2009. Instant writ petition is the 17th in number.
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15. We are noting as aforesaid to highlight the fact that the petitioner who has been litigating with his department since the year 2002 seems to be spending his time in the corridors of Court rather than on his desk. It is but obvious that petitioners performance would be Average.
6. They have further submitted that Applicant behaves as if he is the only person who is faithful to the Organization and he is the only one who thinks about the Welfare of the Organization. They have also sated that in the order of this Tribunal 28.07.2008 in OA No.639/2209 it was observed that there is a litany of grievances against various functionaries of NWDA in his pleadings in which he has tried to occupy the moral high ground by stating that he has been fighting against corrupt practices indulged in by other offices of the organization including the Director General and all his woes are attributable to his knight-in-shining-armour crusades. This seems to be merely paranoiac behavior in the absence of convincing proof.
7. They have also stated that the High Court in its order dated 08.11.2011 in LPA No.906/2011 in W.P. ( C) No.7509/2008 observed that the Applicant was a disgruntled employee of the Respondents and is a habitual and chronic litigant having lost at every stage on every issue which he agitated against the Respondents. Further, they have stated that the Superintending Engineer, under whose administrative control the Applicant was placed informed that during the above 2 years, he did not apply for leave except taking casual leave on 7 occasions only.
8. They have also stated that the Applicant is retiring on 31.07.2015 from NWDA and NDWA does not have any pension scheme for its employees.
9. We have heard the Applicant who argued in person and the learned counsel for the Respondents Shri Gyanendra Singh and Shri R.N.Singh. The Applicant has fled this OA on 18.03.2015 and by the time Rs.90,000/- has already been recovered out of Rs.1,81,461/- ordered to be recovered from his salary vide the impugned order dated 13.12.2014. Considering that the aforesaid order was prima facie unsustainable, vide order dated 23.03.2015, we have stayed further recoveries. During the said period, the Applicant was working under Shri R.K. Jain, Chief Engineer (Hq). According to the Applicant attending the court cases in respect of his own service disputes pending before the Tribunal/Court cannot be treated as non-official duty. He has also submitted that he has attending the cases in which he was the Applicant/Petitioner or Respondent, was with the oral permission of Shri Jain. Interestingly, neither Shri Jain nor any other officials of the Respondents objected his attending the Tribunal/Court without applying for leave or sanctioning of leave. The Applicant has also put in writing on 23.01.2014 that Shri Jain had earlier allowed him to appear in Tribunal/Courts without applying for leave and later accused him of attending the Tribunal/Court without applying for leave only for the reason that he called Shri Jain a corrupt officer in the appointment of nine LDCs during the year 2011 and for making RTI questions against his functioning. It was only on 20.01.2014, Shri Jain has issued the Memorandum to the Applicant that he has been attending the Tribunal/Court without applying for leave. Further, it is seen that by the order of the Respondents dated 11.04.2014, they have already held that for the alleged unauthorized absence of the Applicant, he was liable for initiation of disciplinary proceedings. But at the same time, without initiating any disciplinary proceedings against him, the Respondents enforced the principle of no work no pay in terms of FR-17(1) for his absence of 97 days (details given in attached statement marked as Annexure) and to treat his absence as dies non in terms of FR 18 which would cause interruption in his service in terms of FR 17A. When the Respondents were of the view that the Applicant was on unauthorized absence which is admittedly a misconduct, first of all he should have been subjected to disciplinary proceedings without invoking the provision of FR-17A straightaway causing interruption or break in service. Further, FR 18 only says that Unless the President, in view of the exceptional circumstances of the case otherwise determines, no Government servant shall be granted leave of any kind for a continuous period exceeding five years. The aforesaid rule has no application in the case of the Applicant.
10. Further, it is seen that the Respondents have calculated the overpayment made to the Applicant to Rs.1,81,461/-. According to the Respondent own records, the Applicant was present on all the 97 days which they have treated as unauthorized absence. They have no record to show the duration of his absence on each of those days he attend the Tribunal/Court. Therefore, they assumed that he was on full days leave for all those days whereas the contention of the Applicant was that his absence from duty in most of those days was less than half hour or so. But the Respondents surmise was that within that time it was not possible for him to attend the court and return for duty. It a well settled law that the surmises and presumptions are not substitutes for evidence. Further, as submitted by the Applicant, the order of recovery of the aforesaid amount was issued on 30.12.2014 and the Applicant is due for his retirement on 31.07.2014. It is the Respondents own admission that their employees are not entitled for any pension. In such a circumstance, the recovery of such a huge amount from the Applicants pay at the fag end of his service will cause undue hardship and it amounts to nothing but injustice. The Apex Court has also held that in Rafiq Masihs case (supra) that such recovery from an employee who is due to retire within one year of the order of recovery is not permissible.
11. In the above facts and circumstances, we allow this OA and quash and set aside the impugned order dated 30.12.2014. Consequently, the Respondents shall forthwith refund the amount recovered so far from the Applicants pay but in any case, before his retirement on 31.07.2015. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh